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PETITIONER: RAMAN NADAR VISWANATHAN NADAR & ORS.

       Vs.

RESPONDENT: SNEHAPPOO RASALAMMA ALIAS AMMUKUTTY & 4OTHERS

DATE OF JUDGMENT: 17/09/1969

BENCH: RAMASWAMI, V. BENCH: RAMASWAMI, V. SHAH, J.C. GROVER, A.N.

CITATION:  1970 AIR 1759            1970 SCR  (2) 471  1969 SCC  (3)  42

ACT: Hindu Law--Will--Bequest to unborn person.

HEADNOTE:    K,  a Hindu had no issue, but had a brother R who  had  3 daughters.  K, and R jointly executed a will  bequeting  the assets  of  K  to son or sons born in future to  R,  to  the exclusion  of the daughters, after the death of K and R.   K died  in 1947.  The appellants claiming to be the sons of  R by  his subsequent marriage, filed a suit for a  declaration that  R  had only life interest in K’s properties  with  the remainder  vested in them under the will.  The  trial  court decreed  the suit holding that the second marriage of R  was legal  and  the appellants were entitled to  the  properties subject  to R’s life estate and that  R’s daughter  had   no right  in the properties.  R’s daughters filed an appeal  to the  High  Court.  Soon after K’s death,  another  suit  was filed by R’s daughters  ’for administration of K’s estate in which  the: appellants mother  was a party.  This  suit  was dismissed  on the ground that the plaintiffs had lost  their right  on  the birth of appellants. An appeal  to  the  High Court was pending  in  this suit also.  The High Court by  a common  judgment held that the appellants, sons of  R,  were born  after  K’s death, so the devise in  their  favour  was void,  and  that after the life estate of R,  his  daughters became entitled to the properties for their life time.     HELD:  Although  there is no authority in Hindu  Law  to justify  the  doctrine that a Hindu cannot make  a  gift  or ’bequest  for  the  benefit of an  unborn  person  yet  that doctrine has been engraved in Hindu Law by the decision   of the  Judicial  Committee in Tagore v. Tagore.   I.A.  (1872) Supp. 47.  This doctrine was laid down for the first time in the  case   of  Tagore.   This  decision  of  the   Judicial Committee has stood a great length of time and on the  basis of   that    decision   rights    have    been    regulated, arrangements  as to property have passed.    Therefore  this was a proper case in which maxim communis error facit jus be applied. The principle underlying the maxim is that "the law so  favours  the  public good, that it will  in  some  cases permit  a common error to pass for right". The  bequests  in

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favour  of R’s sons were void and of no  legal  consequence. [477 A; 478 F-G]     It  is, therefore, not possible to accept  the  argument that the will was intended to operate or to come into effect after  the death of both the testators.  In ’regard  to  K’s properties  the  life  estate devised in favour  of  R  must necessarily take effect and remain in force during the  life of  R and not after that; it is true that at the end of  the will  there  is a clause that both the  testators  have  the right  to  revoke the will during their lives and  that  the will  take effect only sub:sequent to their death.  But  the true  intention  of the testator has to be gathered  not  by attaching importance to isolated expressions but by  reading the  will  as a whole with all its provisions  and  ignoring none  of  them  as redundant  or  contradictory.   It  must, therefore,  be held that as the express devise to R for  his life  is  a disposition intended to take  effect  after  the death of K and before the death of R the last clause in  the will  could  not be literally correct.  The  daughters  also could not take under the will as the bequest in their favour was subject to the defeasance clause. [480 E-H] 472     Tagore’s  case,  I.A.  (1872)  Supp.   47  and   Charles Dalton  v.  Henry  Angus  & Co., [1881]  6  A.C.  740,  812, referred to.

JUDGMENT: CIVIL APPELLATE JURISDICTION: Civil Appeal No. 2467 of 1966. Appeal from the judgment and decree dated March 27, 1963 the Kerala High Court in Appeal Suit No. 848 of 1960’.     Sarjoo  Prasad, P.K. Pillai and M.R.K. Pillai, for  the: appellants.     V.K. Krishna Menon, R. Thiagarajan and K. Jayaram,   for respondents Nos. 1 to 3. The. Judgment of the Court was delivered by     Ramaswami, J. This appeal is brought by certificate from the judgment of the High Court of Kerala in A.S. No. 848  of 1962  dated  March  27, 1963 reversing  the  decree  of  the principal Subordinate Judge, Trivandrum in O.S. No.. 182  of 1957 dated May 23, 1960.     The  father of the plaintiffs who are appellants  herein was  a  Hindu  Nadar namely Raman Nadar.  He  had  an  eider brother  named  Krishanan Nadar.  On May 9,  1946  the  said Krishanan  Nadar and Raman Nadar jointly executed a deed  of will  Ex. P-2 in respect of the assets of  Krishanan  Nadar. On  the  date  of  the will,  Raman  Nadar  had  only  three daughters  and no sons. Krishnan Nadar died on  December  5, 1947.   After  the death of Krishnan Nadar  the  appellant’s mother’ was married to Raman Nadar, who is the father of the appellants. It is specifically provided in the will Ex.  p-2 that in the event of Raman Nadar begetting a son or sons  in future  those  male issues will  succeed to  the  assets  of Krishnan  Nadar  to  the exclusion of  the  daughters.   The material portion of the will, Ex. p-2, reads as follows:                     "Deed of will executed by Krishnan  aged               51,   Nadar,  son  of   Kaliyambi,   merchant,               Makkavazhi,     Kuzhiamvilakathu      Veettil,               Melkaladi,   Airanimuttan,  Pakuthy,   Nellamn               Adhikaram  and  his brother Raman son  of  the               said Kaliyambi of do.,  aged 39,  merchant, on               26th   Madam,   1111  M.E.  with   their   own               consultation and to their entire satisfaction.               Some   properties  have been acquired  in  the

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             name  of the 1st named and in the name of  the               2nd  named out of love and  affection  towards               him  and his children, with the  self-acquired               money of the 1st named ’and without the income               of the Tarwad properties of the 1st named  and               without  the help of the other members of  the               Tarwad or the 2nd named.  They are held               473               by the 1st named in his possession and enjoyed               by him till this date. The 1st named has, till               the   end  of  his  life;  absolute   freedom,               authority   and   right   to   alienate   (the               properties) in whatever manner he likes and to               execute  deeds.  The first named is  unmarried               and  the  second named  has  married  Parvathy               alias   Snahappoo   daughter      of    Sarah,               Maraikkamuttath  Veettil,  Vazhuthoor   Desom,               Neyyattinkara Taluk, through whom he has three               daughters Ammukutty aged 14, Chellamma aged 10               and Rajammal aged 5 but no son.  As the  first               named  felt himself desirous of making  during               his  life provision for the  devolution  after               his   life  of  the  movable   and   immovable               properties  belonging  to  him  in    absolute               rights as aforesaid, the following  provisions               regarding them are made: The first named  till               the end of his life will have the right to pay               the  land revenue to enjoy and dispose in  any               manner   whatsoever   all  the   movable   and               immovable properties that belong or may belong               to  himself.   After  the life  of  the  first               named,  all the properties above said will  be               taken   and  enjoyed  by  the   second   named               maintaining his children named above and those               born  to him later and without  alienating  or               westing the properties. After the life of  the               second named, if he leaves behind no sons, the               three daughters named above and the daughters,               if  any,  born  hereafter may  enjoy  all  the               movable  and immovable properties that may  be               found  to  belong to the first named  and  the               second  named,  either in common or  in  equal               shares, effecting mutation, taking pattahs and               paying  the revenue in their own   names,  but               without  making any  alienation  thereof.   If               there  be sons born to the second named,  they               will  take after the life of the second  named               all  the movable and immovable  properties  of               the  first  named and the 2nd named and  enjoy               them  for  ever,  effecting  mutation,  taking               pattahs  and  paying  revenue,  and  with  all               powers  of  disposal; and in that  event,  the               daughters  of the 2nd named will not have  and               should  not claim any right and they will  not               get any right."     Soon after the death of Krishnan Nadar defendants 3  and 4  and the mother of the 5th defendant as  plaintiffs  filed O.S.  No.  37  of 1124 M.E. for the  administration  of  the estate  of  the  deceased  Krishnan  Nadar.  The  mother  of appellants  was made one of the defendants in that suit  and the  allegation  was  that Raman  Nadar  had  contracted  an illicit  relationship  with her and that he had  executed  a gift  deed Ex. D-1 in her favour in respect of some  of  the plaint  items.  O.S. no. 37 of 1124 was  dismissed  on  the’ ground  that  the  plaintiffs of that suit  had  lost  their

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rights  under the will on the birth of a son to Raman  Nadar through his second 474 wife  on February 7, 1951 during the pendency of  the  suit. The  plaintiffs in O.S. No. 37 of 1124 filed A.S. No. 98  of 1955  against the aforesaid decree and that was disposed  of by a Division Bench of the Kerala High Court on February  2, 1957.  The High Court observed as follows:                     "We do not consider it proper to  decide               this  question ’of ’the legitimacy of the  son               born  to  the  1st  defendant  in  his  second               marriage) in this suit.  This can be gone into               in ’a suit, if any, instituted by or on behalf               of the son.  The 1st defendant had no right to               revoke   the  will  after   Krishnan   Nadar’s               death   ......   The  plaintiffs  do  not  and               cannot  get  the right to  possession  of  the               properties  until  after the  1st  defendant’s               death        but a right to  maintenance  from               the income of the properties has been provided               for  the  plaintiffs by Ex. A (the  will)  and               this  they  are  entitled  to  get.  The   1st               defendant is not entitled to do any act  which               affects this right of the plaintiffs."  The High Court remanded the suit for fresh disposal to  the Additional  Subordinate Judge, Trivandrum.  After  the  suit went  back  on  remand  the  Additional  Subordinate  Judge, Trivandrum held that the plaintiffs were not entitled to any relief  and dismissed the suit.  The daughters of  defendant no.1 preferred an appeal, A.S. No.. 340 of 1959 to. the High Court.     Meanwhile the appellants instituted O.S. No. 182 of 1957 for  a declaration that the first defendant had only a  life estate  in  the  properties  of  Krishnan.  Nadar  with  the remainder  vested in them under the will referred to  above. The  suit  was decreed by the Principal  Subordinate  Judge, Trivandrum  who  held that the second marriage  of  the  1st defendant  was legal and the sons born out of that  marriage were entitled to  Krishnan  Nadar’s property subject to  the life estate of the 1st defendant.  It was further held  that the daughters of the 1st defendant (plaintiffs in O.S. No 37 of 1124) were not entitled to any right over the properties. The  daughters of the 1st  defendant  preferred   an  appeal against the. decree of the Principal Subordinate Judge being A.S.  No. 848 of 1960.  The High Court decided this.  appeal and  A.S. No. 340 of 1957 by a common judgment on March  27, 1963.  Appeal A.S. No. 848 of 1960 was allowed in whole  and suit  O.S.  No.  182 of 1957 filed by  the   appellant   was dismissed.    A.S.  No.. 34 of 1959 was partly  allowed  and appellants  1 and 2 (being the first two plaintiffs in  O.S. No. 37 of 1124) were held entitled    to maintenance of Rs.. 50/-  per  head  per menses from  February  18,  1957.   The alienations, Exs. C, D and E were held not binding upon  the plaintiffs  in  that suit nor to have any force  beyond  the life of the 1st defendant.  The other prayer sought  by  the plaintiffs in the appeal was disallowed. 475     In  dismissing O.S. No. 182 of 1957 the High Court  took the view that the legal validity of the bequests in Ex.  P-2 had  to  be ascertained as on the date of  Krishnan  Nadar’s death  which   was December 5, 1947.  The  marriage  of  the first  defendant  took place on 14-1-1124 (corresponding  to August  29, 1948) and the first child of that  marriage  was born  on  February 7, 1951.  The sons of the  1st  defendant born of his second wife were, therefore, not in existence at

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the  time  of  the death of  the  testator  Krishnan  Nadar. Krishnan  Nadar belonged to the State of Travancore and  all his properties were located in that State where the doctrine of  pure  Hindu  Law  reigned  supreme  unaffected  by   any legislation.  The  High Court held that  according  to  pure Hindu  Law a gift cannot be made in favour of a  person  who was  not  in existence at the date of the  gift.   A  person capable  of taking  under a  will must either in fact or  in contemplation  of  law be in existence at the death  of  the testator.   The devise in favour of plaintiffs in O.S.  No.. 182  of 1957 was void as they were not born at the  time  of death  of Krishnan Nadar.  After the life estate of the  1st defendant, the daughter:rs became entitled to the properties for their life time.     The question involved in this appeal is whether the High Court  was  right  in  holding  that  plaintiffs  have   not established their title to the disputed properties.     Although  there is no authority in Hindu Law to  justify the doctrine that a Hindu cannot make a gift or bequest  for the  benefit of an unborn person yet that doctrine has  been engrafted  on  Hindu  Law by the decision  of  the  Judicial Committee.  This  doctrine was laid down for the first  time in  Tagore’s case(1), in which it was held by  the  Judicial Committee  that  a Hindu cannot make a gift in favour  of  a person  who   is  not  in existence either  in  fact  or  in contemplation  of  law  at the time the  gift  was  to  take effect.  The  Judicial  Committee  purported  to   base  its decision   on  a passage in Dayabhaga, Ch. 1, verse  21  as. appears from the following passage in the judgment:                     "This makes it necessary to consider the               Hindu Law of Gifts during. life and wills, and               the extent of the testator’s power, whether in               respect  of the property he deals with of  the               person  upon whom he confers it.  The  Law  of               Gifts   during   life  is  of   the   simplest               character.  As to ancestral estate it is  said               to  be improper that it should be  aliened  by               the  holder, without the concurrence of  those               who  are interested in the succession, but  by               the  law as prevailing in Bengal at least  (1)               the  impropriety  of the alienation  does  not               affect the legal character of the act  (factum               valet),  and it has long been  recognised  as.               law               (1) I.A. (1872) Supp. 47.               476               in Bengal that the legal power of transfer  is               the   same   as  to  all   property,   whether               ancestral  or   acquired.  It applies  to  all               persons  in  existence and capable  of  taking               from the donor at the time when the gift is to               take effect so as to fall within the principle               expressed  in the Dayabhaga, cup. iv.  21,  by               the  phrase ’relinquishment in favour  of  the               donee who is a sentient person’  By a rule now               generally  adopted in jurisprudence this class               would   include   children  in   embryo,   who               afterwards come into separate existence." (pp.               66-67). But  the  Judicial  Committee  was  apparently  under   some misconception  with respect to the meaning of the  words  of Dayabhaga.The whole sentence in the original is as  follows: of which the following is the: correct translation:                   "Since  in a gift the done’s ownership  in               the  thing (given) arises from the very act of

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             the donor, consisting of the relinquishment of               his  ownership with the intention  of  passing               the same to a sentient being."     The  sentence  neither expresses nor  implies  that  the "sentient being" must be in existence. or be present at  the time  and place of the relinquishment.  On the contrary  the whole argument contained in paragraphs 21 to 24 of Ch. 1  of Dayabhaga shows that a gift is completed by the donor’s  act alone,  the  acceptance of the donee  being  not  necessary. Indeed,  in  the very  next  passage,  Dayabhaga  speaks  of gifts to God as showing that the validity of the gifts  does not depend upon acceptance.     Mr.  Sarjoo  Prasad suggested that the  matter  required reconsideration.   But it is manifest that the  decision  of the   Judicial  Committee in Tagore’s case(1)  has  stood  a great  length  of  time and on the basis  of  that  decision rights have been regulated, arrangements as to property have been made and titles to property have passed.  We are  hence of the opinion that this is a proper case in which the maxim communis  error  facit  jus  may  be applied.     The  principle underlying the maxim is that "the law  so favours the public good, that it will in some cases permit a common error to pass for right"; as an example of which  may be  mentioned the case of common recoveries in English  law, which  were fictitious proceedings introduced by a  kind  of pea  fraus to elude the statute de Donis, and which were  at length allowed by the Courts to be a bar to an estate  tail, so  that these recoveries however clandestinely  introduced, became by long use and acquiescence a legal mode (1) I.A. (1872) Supp. 41. 477 of conveyance whereby a tenant in tail might dispose of  his lands.  There is a reference made to this principle by  Lord Blackburn in his speech in  Charles Dalton  v.  Henry  Angus & Co.(1)  as follows:                   "I  quite agree with  what is said by  the               late  Chief Justice Cookburn (3 Q.B.D. at page               105) that where the evidence proved an adverse               enjoyment  as  of right for twenty  years,  or               little more, and nothing else, ’no one had the               faintest  belief  that  any  grant  had   ever               existed, and the presumption was known to be a               mere  fiction’.   He  thinks.  that  thus   to               shorten  the period of   prescription  without               the  authority of the Legislature was a  great               judicial usurpation.  Perhaps it was  The same               thing  may be said of a11 legal fictions,  and               was often said (with, 1 think more reason)  of               recoveries.   But I take it  that when a  long               series  of cases have settled  the   law,   it               would produce intolerable confusion if it were               to  be reversed because the: mode in which  it               was introduced was not approved of even  where               it    was    originally    a   blunder,    and               inconvenient, communis error facit ]us."     The doctrine in Tagore’s case(:)  has  been  altered  by three Acts, namely, the Hindu Transfers and Bequests Act,  1 of  1914, the Hindu Disposition of property Act of 1916  and the Hindu Transfers and Bequests (City of Madras) Act, 1921. The legal position under these Acts is that no bequest shall be invalid by reason only that any person for whose  benefit it  may  have  been made was not born at  the  date  of  the testator’s.  death.  This rule, however, is subject  to  the limitations  and provisions contained in ss. 113,  114,  115 and 116 of the Indian Succession Act, 1925.

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   It is, however, not disputed in the present case that on the  relevant date none of the three Act was  operative  and the  doctrine  or  pure  Hindu Law  was  applicable  to  the Travancore  State.  It follows that the principle laid  down in  Tagore’s case(2) applied and the bequests in  favour  of the  sons  of  the 1st defendant are void and  of  no  legal consequence.     On  behalf of the appellants it was contended  that  the bequest  in favour of the sons of the 1st defendant  was  in the  nature  of  a family  provision  and,  therefore,  fell outside  the  principle laid down in Tagore’s  case(2).   In our  opinion,  there is no justification in  this  argument. Assuming  without  deciding that a family  provision  is  an exception  to  the  rule of pure Hindu Law  stated  above  a provision  in  a will whereby the testor  directs  that  his properties after his death shall be taken by his nephews  or in their absence (2) 1. A. (1872) Supp. 47. (1) [1881] 6A.C. 740,812. 478 by his nieces cannot be characterised as a family provision. The object of such a disposition is obviously not to make  a family provision but to chart a course for future devolution of the testators properties.     The  argument was stressed on behalf of  the  appellants that the will Ex. P-2 was a joint will executed by  Krishnan Nadar  and  Raman Nadar and it was designed to  take  effect only after the death of both the testators.  As the sons  of the 1st defendant must necessarily be born before that event the  principle  in   Tagore’s  case(1)  was  not  attracted. Reference  was made to the following passage from Jarman  on wills 8th edn.                     "Two  or more: persons may make a  joint               will, which, if properly executed by each, is,               so  far as his own property is  concerned,  as               much  his  will, and is as  well  entitled  to               probate  upon his death, as if he had  made  a               separate  will.  But a joint will made by  two               persons,  to  take effect after the  death  of               both, will not be admitted to probate   during               the life of either.  Joint wills are revocable               at any time by either of the testators  during               their joint lives, or, after the death of  one               of them, by   the survivor."     In  our opinion there is no warrant for  this  argument. The ’will Ex. P-2 contains separate provisions regarding the devolution  of the properties of each of the testators.   In regard to the properties of Krishnan Nadar it devises a life estate to let defendant and the remainder to his sons or  in their   absence  to  his  daughters.   In  regard   to   the properties of  Raman Nadar the devise is to his sons and  in their  absence  to  his  daughters.  It  is  therefore,  not possible  to accept the argument that the will was  intended to  operate or to come into effect after the death  of  both the testators.  In regard to the Krishnan Nadar’s properties the life estate devised in favour of the 1 st defendant must necessarily take effect ’and remain in force during the life of the 1st defendant and not after that.  It is true that at the  end  of  the  will there is  a  clause  that  both  the testators have the right to revoke the will during the lives and that the will will take effect only subsequent to  their death.   But the true intention o,f the testator has  to  be gathered not by attaching importance to isolated expressions but  by reading the will as a whole with all its  provisions and ignoring none of the has redundant or contradictory.  It

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must, therefore, be held that as the express devise to  the: 1st defendant for his life is a disposition intended to take effect  after  the death of Krishnan Nadar  and  before  the death  of 1st defendant, the last clause in the will  cannot be literally correct.     It  was then contended on behalf of the appellants  that in any event the High Court was in error in holding that the title of the (1) I. A. (1872) Supp. 47.       479 plaint  properties  vested  in  the  daughters  of  the  1st defendant under the terms of the will, Ex. P-2.  It  appears that  during  the  pendency of the appeal  defendant  no.  1 Raman Nadar died on May 20 1969 and the question, therefore, arises whether the daughters are entitled to a life interest in the plaint properties after the death of defendant no. 1. It  is  manifest  from  the will that  the  bequest  to  the daughters  is  subject  to  the  prior  condition  that  the defendant  no.  1 leaves behind no sons at the date  of  his death.  The relevant portion of Ex. P-2 states:                   "After the life of the second named, if he               leaves  behind  no sons, the  three  daughters               named  above and the daughters, if  any,  born               hereafter  may  enjoy  all  the  movable   and               immovable  properties  that may  be  found  to               belong  to  the. first named  and  the  second               named,   either   in  common   or   in   equal               sharps  ........  " The  bequest to the daughters was, therefore, defensible  on the  sons  being born to defendant no. 1.   Hence  upon  the death of defendant not 1 on May 13, 1969 there was no  valid bequest  to   the daughters.  In other words  there  was  an intestacy  and the provisions of the Hindu  Succession  Act, 1956 (Act no. 30 of 1956) would be applicable.  The sons  of defendant  no.  1 cannot  take under the will  because  they were  unborn  on  the  date of the  death  of  the  testator Krishnan  Nadar.  The daughters also cannot take  under  the will  as  the  bequest in their favour was  subject  to  the defeatisms clause.  It is evident that the appellants would, be  entitled  to, their lawful share of  the  properties  of Krishnan  Nadar under the provisions of the Hindu Succession Act,  1956  and they are entitled to a declaration  to  that effect  and  other  consequential reliefs.  But  it  is  not possible  for us to finally dispose of this  appeal  because there  was an issue in the trial court as to   whether   the appellants were the legitimate sons of defendant no. 1.  The case  of the defendants 3 to 5 was that there was no.  legal marriage  between  the 1st defendant and the mother  of  the plaintiffs.        But the assertion of the plaintiffs,  was that  their mother married  the 1st defendant after  getting herself  converted into  Hinduism    and such  marriage  was legally valid and the plaintiffs are the legitimate children of the 1st defendant.  The trial court decided the issue  in favour  of  the plaintiffs but the High Court has  not  gone into the question nor recorded a finding as to, whether  the plaintiffs are the legitimate sons of defendant no. 1.     For  these  reasons  we hold that this  appeal  must  be allowed,  the judgment of the Kerala High Court dated  March 27, 1963 in A.S. No. 848 of 1960 should be set aside and the appeal should be remanded to the High Court for  determining the issue whether 480 the  plaintiffs were the legitimate sons of defendant no.  1 and thereafter dispose of the appeal in accordance with law. The  parties  will bear their own costs  upto  this   stage.

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The   application   made   by   the   plaintiffs   for   the appointment  of  a Receiver will be dealt with by  the  High Court. y.p.             Appeal allowed. 481